The Campaign to Restore Federalism

One of the fundamental presumptions of the U.S. Constitution is this: when governmental power is consolidated and unlimited it is unresponsive to the needs of the governed. The framers originally sought to prevent the overreach of government by creating an elegant framework to distribute power as widely as possible through a structured competition of natural self-interests. It is for this reason that the framers preserved the integrity of the states, these independent but united “laboratories of democracy”, and it is this federal system that the 17th Amendment (which provides for the direct, popular election of U.S. Senators) destroyed. This amendment has resulted in, as the framers predicted, a national government with influence, power and control unchecked by any political mechanism. This unlimited structure threatens the uniquely American way of life and the solvency of the national government.

The original design of the U.S. Constitution acknowledged that the several state governments were equipped better than the national government to address the vast majority of citizens’ needs. The democratically elected officials of those state governments live among the people they represent. They shop at their constituents’ stores and socialize at their homes. Unlike a national politician in Washington with millions of citizens he “represents”, state officials each have constituents that number in the tens of thousands. They are far more likely to know the people, their strengths, their problems and their sensibilities, and are therefore the appropriate representatives of the people’s most critical political desires. Assembled in the state house, these governments have collective interests and characters of their own that legitimately compete with those of the national government.

The original U.S. Constitution gave state governments a strong voice in the national government by requiring them to select U.S. Senators - to serve much like ambassadors today at the United Nations - and thus created the U.S. Congress to be a political (not judicial) venue for the competition between state government interests and national government interests. The Senate provided the state governments the necessary ability to restrict the natural inclination of the national government to expand its power. It is no coincidence that the national government began its exponential growth following the passage of the 17th Amendment, just as soon as there was no longer a competing interest that could stop it. The framers concluded that the judiciary was not the appropriate arbiter (as the courts currently imagine themselves) of the line between state and national interests, in part because the courts have a self-interest favoring a strong national government (the courts being created by Congress), and in part because the framers understood that different generations may draw that separation in different ways.

The framers understood that the people of the several states were also citizens of the nation, and as such, gave them responsive representation in the form of the U.S. House of Representatives. The Progressives that pushed for the 17th Amendment in the belief that the cure for democracy’s shortcomings is more democracy, did not address the fundamental purpose for the Senate: to protect the sovereignty of the states against the encroachment of national government into the states’ meaningful interest in addressing their people’s needs. It did not take long for the state governments, which ratified the 17th in record time, to understand the full, detrimental impact of what they had done. Consider that those in state government claim a responsibility to address questions in the areas of taxation, education, employment, disaster relief, public safety, transportation, health care, marriage, and property rights, to name but a few. Yet all of those issues, and far more, are now primarily mandated, regulated, or directed out of Washington, DC, far away from the people being impacted by those policies. While the state governments bear much of the responsibility for their citizens, they have only secondary authority to do anything about the issues they face. When federal courts decline, as they frequently do, to interpret the 10th Amendment as protecting the sovereignty of states, without a voice in the U.S. Senate the states have no recourse. Repealing the 17th would address this deficiency.

The “winner take all” mentality and the resulting bitterness that grips partisan Washington today is one direct result of the 17th Amendment. Interest groups understand that to impose one’s will on 300,000,000 Americans, one must influence one president, the selection of 5 supreme court justices, 51 (or 60) senators, and 218 representatives, a total of 275 individuals who live primarily in physical isolation, far away from those they govern. This makes the stakes extremely high. A tremendous amount of money is raised and spent on influencing 275 individuals in Washington. Repealing the 17th Amendment would devolve power away from the national government and drastically reduce the influence of interest groups. Under the original design, change at the national level required that the majorities of all the state legislatures – made up of thousands of representatives – be taken into account. The framers understood that moderate, temperate government is brought about by a multitude of competing interests. Repealing the 17th takes a major step toward restoring this balance.

At the same time, the individual’s self-interest is currently working against a repeal of the 17th. Consider recent studies showing that 52% of the U.S. population receives a significant portion of their personal income from government programs. At present, it is in the majority of citizens’ own short-term self-interest to see this flow of money grow larger and faster. Without checks on our own self-interest, we the citizens of the United States will continue to vote ourselves payments from the U.S. Treasury until our national government is financially and philosophically bankrupt. This is perhaps the most classic, and most widely understood pitfall of democracy, and strong safeguards must be restored to correct for it.

There is a mechanism in the original constitutional design that could prevent our own self-destruction, and may keep us from spending our way into total ruin. A repeal of the 17th Amendment and the resulting rise of strong, sovereign state governments is our best hope.

So, why did we ratify the 17th?

Arguments in favor of the 17th often fall along these lines:

The 17th was a necessary and appropriate response to an increasing number of cases in which U.S. Senators effectively bought their seats through bribes paid to members of state legislatures. This was an unjust practice that needed to be stopped.

Political parties / machines in the several states selected U.S. Senators in reward for work (or payments to) the parties. This was an unjust practice.

Some state legislatures proved either unwilling or unable to elect U.S. Senators, leaving some seats vacant for months or years - even threatening the quorum in the Senate. Popular election of Senators ensures that the seats will be filled.

The purpose of the 17th is to provide direct representation of the people's will. Citizens are the best equipped to elect senators.

Each state legislature is corrupt (or dysfunctional), and should not have more power than it does.

These are reasonable arguments, but they miss the point. In an attempt to solve very real problems, the backers of the 17th Amendment (who were in fact the “special interests” of their time) created a new problem that is far more severe: The fundamental problem with the 17th is that Senators no longer work for or represent their state governments, and therefore the state governments no longer have a voice or meaningful political power in the national government. The state governments were the most important check on the influence and scope of Washington, and without this check, the national government is unresponsive to the needs of the citizenry.

While the pro-17th arguments noted above are secondary, they still bear addressing.

The 17th did not stop corruption or election fraud. Corruption is always wrong, whether it takes place between a pre-1913 Senate candidate and the legislature that must select him/her, or when a modern-day Senator accepts “contributions” from “supporters”. By any measure, the 17th was a poor way to solve the problem of corruption. If anything, it merely pushed the corruption underground and spread it around. What was once a limited, illegal transaction between one candidate and the known state legislators is now a problem between one candidate and several thousand unknown and unknowable funding sources over several tens of thousands of transactions. Consider this: if the primary purpose of the 17th was to eradicate corruption from Senatorial selection, it failed brilliantly at doing so. Far too many contemporary examples exist to suggest otherwise. Corruption will always be a part of politics and must be dealt with aggressively, but altering the foundational structure of the Constitution in order to wave a hand at corruption was profoundly misguided.

The 17th did not lessen the power of political parties. Political parties have always selected Senate candidates, and once selected, some other body (legislature or electorate) has had to choose between them. A state legislature – theoretically – has a party composition that mirrors that of the state, so without the 17th, party make-up is not likely to be extraordinarily divergent from what the electorate would select.

A state legislature has a political (perhaps even moral) obligation to elect a Senator in a timely fashion, but it also has an inherent / sovereign right not to. Should a legislature prove unwilling or unable to fill a vacant Senate seat, this problem is one for the state itself to resolve by a process it deems most appropriate. To argue that a crisis exists when the U.S. Senate fails to reach a quorum, one presumes that the federal government's work is critically important, a belief perhaps not shared by the insufficiently motivated state legislature: the original constitutional structure is designed to restrict, not facilitate the federal government's acquisition of power.

The 17th Amendment violates the principle that entities are represented only once in government (some call this a variation of "one person / one vote"). Citizens are already represented in the national legislature by their elected member of the U.S. House. Allowing citizens to vote for their state's U.S. Senators means that each citizen is represented by three votes (one House and two Senate). Why? Stating that U.S. citizens are best equipped to vote for U.S. Senators - who should not represent the citizen's will in the first place - is either wrong on principle or beside the point, depending on one's view. The will of the people is best expressed through the people's representatives in the House, but primarily in state and local governments for the simple reason that their most basic needs are met here and not via the government in Washington.

State legislatures, like all human endeavors, are imperfect and corruptible - they are now, and they were in the 1700s. If a state legislature is found lacking, local citizens are far more likely to correct it than they are to reform the national government.

Federalism and the individual:

"Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. . . . Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. . . . By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake. . . . The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. . . . An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate."